ACLU Letter to Congresswoman Jane Harman Supporting Her Bill, H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act” H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act”

Make a Difference

On behalf of the American Civil Liberties Union, and its
hundreds of thousands of activists, members and fifty-three affiliates
nationwide, we write to express our support for H.R. 5371, the “Lawful
Intelligence and Surveillance of Terrorists in an Emergency by NSA Act.”

H.R. 5371 reinforces the
requirement that the president must follow the laws passed by Congress. The bill reaffirms what the Constitution
and the plain language of the law require: that the government must get a court
order before monitoring Americans’ communications. That order must be based on a judicial
finding that there is probable cause of either criminal activity or that the
target of the wiretap is an agent of a foreign power or an American conspiring
with a foreign power.

The bill also makes clear
that Congress meant what it said when it passed the Foreign Intelligence
Surveillance Act (FISA) and provided that its provisions along with the
provisions in the criminal code are the “exclusive” procedures for wiretapping
Americans in this country. Indeed,
Congress tried to put to rest the very claims President Bush is making
today: “[E]ven if the president has the inherent
authority in the absence of legislation to authorize warrantless electronic
surveillance for foreign intelligence purposes, Congress has the power to
regulate the conduct of such surveillance by legislating a reasonable procedure,
which then becomes the exclusive means by which such surveillance may be conducted.” H.R. Rep. No. 95-1283, pt.
1, at 24 (1978). This is
particularly critical because FISA “was designed . . . to curb the practice by which the
Executive Branch may conduct warrantless electronic surveillance on its own
unilateral determination that national security justifies it.” S. Rep. No. 95-604(I), at 7, 1978 USCCAN
3904, 3908. This is the same
justification being used today.

H.R. 5371 would also make clear that the Authorization for
the Use of Military Force (AUMF), Pub. L. No. 107-40, does not authorize the
illegal NSA spying programs that investigative reporters have uncovered. That resolution does not give the
president a blank check to break any law he chooses. The AUMF says nothing about repealing
protections for Americans’ civil liberties, and it does not amend or alter the
legal requirement that the government get an order from the FISA court before
monitoring the conversations and calling patterns of Americans.

The bill would also address the idea of increasing the speed
of the FISA process by inviting the president to report to Congress about how to
further streamline processing of information and expedite FISA review. It would also authorize additional
appropriations to aid in FISA processing of requests for orders for
surveillance. These changes
underscore the legal requirement that there be a check on whether such
surveillance is warranted, rebuffing the suggestion that the government can
simply bypass this mandated review.

For all of these reasons, we are pleased to support this
responsible legislation that reinforces the rule of law that protects the
liberty of all Americans.